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Sunday, April 27, 2014

Bail - Jail - Bail granted by High court in appeal stage - challenged by state - on the ground that 52 cases are pending - out it nearly out of them in 20 cases offences were registered against him before going to jail and during his stay in jail. 32 cases were registered after being released by this Court on conditional bail in August, 2001.- Apex court cancel bail orders and directed the High court to dispose the appeal with in one year = STATE OF MAHARASHTRA & ANR. … APPELLANTS VERSUS PAPPU @ SURESH BUDHARMAL KALANI … RESPONDENT = 2014 ( April.Part ) judis.nic.in/supremecourt/filename=41459

Bail - Jail - Bail granted by High court in appeal stage - challenged by state - on the ground that 52 cases are pending - out it nearly out of them in 20 cases offences were  registered against him before going to jail and during his stay in jail. 32 cases  were registered after being  released  by  this  Court  on  conditional  bail  in August, 2001.- Apex court cancel bail orders and directed the High court to dispose the appeal with in one year = 
 Aggrieved by the conviction and sentence passed by  the  trial  Court,
the respondent-accused preferred Criminal Appeal No.  1309  of  2013  before
the High Court. Considering his Criminal Application No. 1788 of  2013,  the
High Court enlarged him on bail by the order dated 7th March, 2014 which  is
impugned herein. Against the said order, the State preferred this appeal.=

   Normally, this Court does not exercise its jurisdiction under  Article
136 of the Constitution in interfering in the discretionary order passed  by
the High Court granting bail,  particularly  when  the  criminal  appeal  is
pending before it, but in our view, the reason given by the  High  Court  in
the present case, that the father and  wife  of  the  deceased  have  turned
hostile, cannot be a ground to grant bail. Apart from  these  witnesses  who
turned hostile, there was other material and witnesses available, which  the
High Court ought to have considered while  granting  bail.  The  High  Court
should not have ignored the fact that admittedly, the  accused  is  involved
in as many as 52 cases and out of them in 20 cases offences were  registered
against him before going to jail and during his stay in jail. 32 cases  were
registered after being  released  by  this  Court  on  conditional  bail  in
August, 2001.
15.   It is not in dispute that in spite of being acquitted in some  of  the
cases, still there are 15 cases  in  which  trial  is  pending  against  the
respondent, out of which two cases are under Sections 302  read  with  120B,
IPC.  In the present case also, initially along with charges under  Sections
302/120B, IPC offences punishable under TADA were also charged  against  the
respondent but later on the TADA charges were withdrawn. Though we  are  not
inclined to go into the matter in detail at  present  to  interfere  in  the
order passed by the High  Court,  taking  into  consideration  the  peculiar
facts and circumstances of the  case,  we  are  inclined  to  interfere  and
cancel the bail granted by the High Court.
16.   At the same time, we have considered some merit  in  the  argument  of
the learned counsel for the respondent-accused. It is not  in  dispute  that
the respondent-accused was arrested on 29-01-1993  after  registering  Crime
No. 89 of 1990 on  28-04-1990.  He  was  released  on  bail  on  07-08-2001.
Thereafter, again after judgment in the Sessions Case No. 218 of 1999 on 29-
11-2013, he was again taken into custody. After filing the  Criminal  Appeal
before the Bombay High Court on 30-07-2013, by the impugned order, the  High
Court granted bail to the respondent. There is no doubt that the  respondent
is in jail for almost 9 years. In consideration  of  the  arguments  of  the
learned counsel for the respondent that it will take a number of  years  for
the High Court to hear the appeal, we thought it fit  to  request  the  High
Court to dispose of the appeal  as  expeditiously  as  possible,  preferably
within a period of one year from today  on  its  own  merits  without  being
influenced by any of the views expressed by us in this order.
17.   Accordingly, we allow the appeal and set aside the impugned judgment.
2014 ( April.Part ) judis.nic.in/supremecourt/filename=41459
P SATHASIVAM, RANJAN GOGOI, N.V. RAMANA

                                                          NON-REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                    CRIMINAL APPEAL NO.           OF 2014
                               ARISING OUT OF
                SPECIAL LEAVE PETITION (CRL) No. 2375 of 2014



STATE OF MAHARASHTRA & ANR.  …    APPELLANTS

VERSUS

PAPPU @ SURESH BUDHARMAL KALANI … RESPONDENT



                                  JUDGMENT

N.V. RAMANA, J.


      Leave granted.
2.    This appeal is filed by the State of  Maharashtra  against  the  order
passed by the High Court of Judicature at  Bombay  on  7th  March,  2014  in
Criminal Application No. 1788 of 2013 in Criminal Appeal No.  1309  of  2013
whereby the High Court granted bail to the sole respondent.
3.    The respondent was accused in Crime No. 89 of 1990 of the  Vitthalwada
Police Station, Thane registered under  Section  120(B)  read  with  Section
302, IPC on the allegation of hatching criminal conspiracy  in  the  killing
of the deceased Inder Bhatija. After  completion  of  investigation,  charge
sheet was filed against the respondent-accused and the trial Court by  order
dated 29th November, 2013  convicted  and  sentenced  him  to  undergo  life
imprisonment and to pay fine of Rs.5,000/-, in default, to  suffer  rigorous
imprisonment for six months.
4.    Aggrieved by the conviction and sentence passed by  the  trial  Court,
the respondent-accused preferred Criminal Appeal No.  1309  of  2013  before
the High Court. Considering his Criminal Application No. 1788 of  2013,  the
High Court enlarged him on bail by the order dated 7th March, 2014 which  is
impugned herein. Against the said order, the State preferred this appeal.
5.    When the matter came up before us on 12-03-2014, we issued notice  and
directed that if the respondent-accused not being released pursuant  to  the
impugned order of the High Court till date, there shall be stay of the  said
order.
6.    Mr. Shankar Chillarge, learned counsel  appearing  for  the  State  of
Maharashtra contended that the accused is involved in as many as  52  cases,
out of which in 20 cases offences were registered against him  before  going
to jail and while he was in jail.  32  cases  were  registered  after  being
released by this Court on conditional bail in August, 2001.  He has given  a
list of 52 cases where the respondent is accused. It is also contended  that
in the present case, when the investigation was going on, it  was  found  by
the police that the respondent was the mastermind behind the murder  of  the
deceased. The High Court, while  granting  bail  to  the  accused,  has  not
considered  any  of  the  facts  and  circumstances  and  history   of   the
respondent. Simply relying upon the evidence of some of the  witnesses,  the
High Court granted bail without applying its mind. He  also  contended  that
the grant of bail to the  accused  would  adversely  affect  the  trial  and
investigation in other criminal cases pending against him and there is  also
likelihood of tampering with the evidence. The respondent being a  political
leader, there is every chance for influencing the pending criminal cases  in
which very  serious  offences  were  charged  against  him  and  prayed  for
cancellation of bail.
7.    A Criminal Miscellaneous Petition No. 8543 of 2014 has been  filed  in
the present appeal by one Kamal Bathija who claims to be the brother of  the
deceased Inder Bhatija, seeking leave of this Court to  implead  himself  as
an appellant.             Mr.  Gopal  Subramanium,  learned  senior  counsel
appearing for  the  impleading  party,  supported  the  case  of  the  State
Government and sought for cancellation of bail. He contended that  the  High
Court has not fully appreciated the facts and evidence before granting  bail
to the accused. The High Court ignored the main fact  that  the  respondent-
accused was the mastermind in  hatching  the  criminal  conspiracy  for  the
murder of the deceased by engaging habitual and professional killers.  Above
all, during the pendency of trial in the present case,  the  respondent  had
committed several other criminal offences and  hence  bail  granted  by  the
High Court shall be cancelled.
8.    On  the  other  hand,  Mr.  Uday  U.  Lalit,  learned  senior  counsel
appearing for the respondent-accused, while drawing our attention to a  list
of  cases  in  which  the  respondent  was  acquitted,  contended  that  the
respondent has already spent 9 long years in jail  during  the  pendency  of
trial, and not even one witness supported the case of the prosecution,  more
particularly, the crucial witnesses i.e. wife (PW 20) and father (PW 12)  of
the deceased themselves have turned  hostile  and  another  crucial  witness
i.e. PW 9—Driver has also turned hostile. Hence, taking into  account  these
facts, the High Court has  rightly  exercised  its  discretion  in  granting
bail. When the bail was granted after  taking  into  consideration  all  the
facts and circumstances, material witnesses and particularly when  there  is
no prima facie evidence against the accused, the bail granted  by  the  High
Court cannot be questioned.
9.    Learned senior counsel further submitted that since the respondent  is
a political leader, he was falsely implicated in the case so as  to  prevent
him in participating in active political life. Even in  the  list  of  cases
furnished by the appellant, out of total number  of  52  cases  against  the
accused, 35 cases were ended in acquittal, 10 cases are  purely  politically
motivated, in around 13 cases the trial was pending, and in some  cases  the
State has falsely shown the name of respondent as accused and at present  no
serious case is pending against the  respondent  where  he  was  charged  as
accused. Hence, there is no reason for this  Court  to  interfere  with  the
order passed by the High Court.
10.   It is also brought to our notice that the  appeal  is  pending  before
the High Court and as per the present roaster of the Bombay High Court,  the
turn of the appeal filed by the respondent will come up  for  hearing  after
fifteen years.
11.   We have  heard  learned  counsel  for  the  parties  and  taking  into
consideration the fact that the deceased was none  other  than  the  younger
brother of the applicant in  Crl.M.P.  No.  8543  of  2014  who  prayed  for
impleadment, we allow the application.
12.   We have also considered the principles laid down by this  Court  while
cancelling bail, in Puran etc. etc. Vs. Rambilas & Anr. etc. etc.  (2001)  6
SCC 338, Dr. Narendra K. Amin Vs. State of Gujarat  &  Anr.  (2008)  13  SCC
584, Ash Mohammad Vs. Shiv Raj Singh @ Lalla Babu & Anr. (2012)  9  SCC  446
and Central Bureau of Investigation Vs. V. Vijay  Sai  Reddy  (2013)  7  SCC
452.
13.   The issue before us is whether it  is  necessary  for  this  Court  to
interfere with the order passed by the  High  Court  granting  bail  to  the
accused-respondent.
14.   Normally, this Court does not exercise its jurisdiction under  Article
136 of the Constitution in interfering in the discretionary order passed  by
the High Court granting bail,  particularly  when  the  criminal  appeal  is
pending before it, but in our view, the reason given by the  High  Court  in
the present case, that the father and  wife  of  the  deceased  have  turned
hostile, cannot be a ground to grant bail. Apart from  these  witnesses  who
turned hostile, there was other material and witnesses available, which  the
High Court ought to have considered while  granting  bail.  The  High  Court
should not have ignored the fact that admittedly, the  accused  is  involved
in as many as 52 cases and out of them in 20 cases offences were  registered
against him before going to jail and during his stay in jail. 32 cases  were
registered after being  released  by  this  Court  on  conditional  bail  in
August, 2001.
15.   It is not in dispute that in spite of being acquitted in some  of  the
cases, still there are 15 cases  in  which  trial  is  pending  against  the
respondent, out of which two cases are under Sections 302  read  with  120B,
IPC.  In the present case also, initially along with charges under  Sections
302/120B, IPC offences punishable under TADA were also charged  against  the
respondent but later on the TADA charges were withdrawn. Though we  are  not
inclined to go into the matter in detail at  present  to  interfere  in  the
order passed by the High  Court,  taking  into  consideration  the  peculiar
facts and circumstances of the  case,  we  are  inclined  to  interfere  and
cancel the bail granted by the High Court.
16.   At the same time, we have considered some merit  in  the  argument  of
the learned counsel for the respondent-accused. It is not  in  dispute  that
the respondent-accused was arrested on 29-01-1993  after  registering  Crime
No. 89 of 1990 on  28-04-1990.  He  was  released  on  bail  on  07-08-2001.
Thereafter, again after judgment in the Sessions Case No. 218 of 1999 on 29-
11-2013, he was again taken into custody. After filing the  Criminal  Appeal
before the Bombay High Court on 30-07-2013, by the impugned order, the  High
Court granted bail to the respondent. There is no doubt that the  respondent
is in jail for almost 9 years. In consideration  of  the  arguments  of  the
learned counsel for the respondent that it will take a number of  years  for
the High Court to hear the appeal, we thought it fit  to  request  the  High
Court to dispose of the appeal  as  expeditiously  as  possible,  preferably
within a period of one year from today  on  its  own  merits  without  being
influenced by any of the views expressed by us in this order.
17.   Accordingly, we allow the appeal and set aside the impugned judgment.
                                                           …………………………………CJI.
                                                             (P. SATHASIVAM)




                                                            ……………………………………J.
                                                              (RANJAN GOGOI)


                                                            ……………………………………J.
                                                               (N.V. RAMANA)
 NEW DELHI,
 APRIL  24, 2014


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